PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 10-4069
JAMES RICHARD HACKLEY, IV, a/k/a
J.R., a/k/a Baby J,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
Glen E. Conrad, District Judge.
(5:09-cr-00018-gec-1)
Argued: September 22, 2011
Decided: December 6, 2011
Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opin-
ion, in which Judge Davis and Judge Diaz joined.
COUNSEL
ARGUED: Helen Eckert Phillips, MCGLOTHLIN AND
PHILLIPS, PPLC, Lebanon, Virginia, for Appellant. Jean
Barrett Hudson, OFFICE OF THE UNITED STATES
ATTORNEY, Charlottesville, Virginia, for Appellee. ON
2 UNITED STATES v. HACKLEY
BRIEF: Timothy J. Heaphy, United States Attorney, Roa-
noke, Virginia, Robert N. Tracci, Special Assistant United
States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlottesville, Virginia, for Appellee.
OPINION
DUNCAN, Circuit Judge:
James Richard Hackley ("Hackley") was convicted of sev-
eral offenses related to his sale of cocaine base to a govern-
ment informant and subsequent efforts to have that
informant—the lead witness in the government’s case against
him—murdered. Hackley challenges his convictions, the join-
der of the charges into a single trial, the court’s refusal to
grant him new counsel, and his sentence. Although the facts
in this case come perilously close to the lower boundary of
what we will accept as substantive evidence of a conspiracy
to distribute drugs, for the reasons discussed below, we
affirm.
I.
A.
David Jackson, a longtime crack user who had worked as
a confidential informant since 1994, brought Hackley to the
government’s attention in May 2008. Jackson worked for a
tree service company and was out doing tree work in Win-
chester, Virginia on May 18, 2008, when he saw Hackley
drive up in a white vehicle. They had known each other since
1992, but had not seen each other for about a year. Jackson
had never purchased cocaine from Hackley before, but knew
from previous discussions with him that Hackley had sold
cocaine in the past. They chatted about how they had been
doing, and then Jackson asked Hackley if he had cocaine. At
trial, this was how Jackson described their conversation:
UNITED STATES v. HACKLEY 3
A . . . . I asked him if he was still getting cocaine.
Q. Is that the word you used? Were you that spe-
cific?
A. Yeah, yeah, yeah, still getting that shit, cocaine,
and he said yeah. Then I asked him for an eight-
ball. He told me I was lucky, he just come back
from Maryland, pull over to the parking lot, and
I bought some crack off of him.
Q. Had you purchased crack cocaine from him in
the past?
A. No.
Q. Prior to that you had never purchased cocaine
from him?
A. No.
Q. Then why was it that you would have this con-
versation about crack cocaine?
A. I’ve known the man since 1992. We’ve had dis-
cussions before, but I’ve never bought.
J.A. 170-71.
The purchase took place in Hackley’s vehicle. After Jack-
son got into the vehicle, he pulled out $100 for the purchase
and saw Hackley reach underneath his seat and pull out a
brown paper bag. From the bag Hackley pulled out a piece of
cocaine approximately the size of "two golf balls" and "broke
off a piece" for Jackson. J.A. 173-74.
That evening, Jackson contacted Agent Kevin Coffman, an
officer with the Northwest Virginia Regional Drug Task
4 UNITED STATES v. HACKLEY
Force whom Jackson had known for "a couple years." J.A. 67.
Jackson told Coffman that he had purchased crack from
Hackley earlier that day.
The government arranged for Jackson to make six con-
trolled purchases from Hackley between May 20, 2008, and
August 20, 2008. During these purchases, Hackley sold Jack-
son a total of 6.554 grams of cocaine base in the form of crack
for $1,050. In addition, Jackson made unauthorized purchases
of crack for his personal use. At some point that summer,
Hackley explained to Jackson that he was receiving the
cocaine from his "family" in Maryland.
B.
Hackley was arrested on August 20, 2008, and held at the
Warren County Jail in Front Royal, Virginia. While incarcer-
ated, he wrote letters to four different female friends in which
he discussed paying Jackson not to testify or persuading him
to lie. These letters expressed that he "would rather if [Jack-
son] did not show up," J.A. 589, and that "the only way out
[of jail] is if [Jackson] don’t show up," J.A. 608. He also
spoke with his fellow inmate, Ray Johnson, about not wanting
Jackson to appear in court. Hackley also told Johnson that he
owned a .380-caliber handgun. While it is unclear whether
Johnson or Hackley first proposed killing Jackson, at some
point that topic arose. Hackley told Johnson that "David Jack-
son needed to be killed so he didn’t show up" in court. J.A.
273. Johnson testified that Hackley’s desire to have Jackson
killed "was pretty set in stone." Id.
Unfortunately for Hackley, Johnson contacted federal
agents and told them that Hackley was discussing having their
witness killed. Johnson became a confidential informant and
began cooperating with the government in its investigation of
Hackley’s murder for hire scheme.
With Johnson’s cooperation, the Bureau of Alcohol,
Tobacco, Firearms and Explosives ("ATF") sent Special
UNITED STATES v. HACKLEY 5
Agent Leonard Codispot to pose as an inmate at the Warren
County Jail. Johnson told Hackley that Codispot could help
him have Jackson killed. Codispot testified that Hackley initi-
ated a conversation by saying to him "I got a problem. I need
this guy taken out. You know, he’s testifying against me."
J.A. 350.
Codispot testified that he asked Hackley if there was "a cer-
tain way he would like to have David Jackson killed," J.A.
277, asking, "Do you want me to stab him, cut his head off
or shoot him with a gun?" J.A. 351-52. Hackley "didn’t care
how it was done, he just wanted Mr. Jackson gone forever."
J.A. 352. Codispot asked him, "[D]o you want [me] to just
take him away for a while and make him disappear for a little
bit?" J.A. 351. Hackley said "no, he wanted him gone for-
ever." J.A. 351.
Codispot also testified that Hackley mentioned that he had
a gun hidden at Irvette Reaves’s house that Codispot could
"probably get," J.A. 351, but that he no longer had her phone
number. Reaves was Hackley’s girlfriend but apparently dis-
associated herself after seeing another woman with him in
prison. Hackley wrote to tell her where the gun was hidden
and to ask her to move it. Despite their falling out, Reaves
moved the gun to her new home and kept it until agents
searched her house on April 28, 2009.
Hackley offered Codispot $5,000 or his motorcycle in
exchange for his help. He twice wrote to another girlfriend,
Susie Dearing, asking her to have keys made for the bike and
telling her that Codispot was going to come inspect it. He
asked Dearing to damage one of the keys to the bike so that
it could not start it. Hackley wrote to Dearing that he was con-
cerned that Codispot was going to try to cheat him. Johnson
gave Dearing’s address and phone number to Codispot so he
would know where the motorcycle was located so he could
inspect it.
6 UNITED STATES v. HACKLEY
After Codispot left the jail, agents staged the death of Jack-
son, complete with a picture in a fake news story. According
to Johnson, when Hackley was given a copy of the article,
Hackley was "[e]cstatic." J.A. 291.
C.
On April 22, 2009, a federal grand jury for the Western
District of Virginia returned a seven-count indictment against
Hackley. Count One charged Hackley with conspiracy to dis-
tribute five or more grams of cocaine base in violation of 21
U.S.C. §§ 841(b)(1)(B) and 846. Counts Two through Seven
charged Hackley with distribution of crack in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(C).
The grand jury returned a superseding indictment on June
18, 2009. This indictment retained the original seven counts
and added four additional charges: (1) murder for hire, in vio-
lation of 18 U.S.C. § 1958; (2) solicitation to commit murder
for hire, in violation of 18 U.S.C. §§ 373 and 1958; (3)
obstruction of justice, in violation of 18 U.S.C. § 1512(c)(2);
and (4) felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1).
Hackley had entered into a plea agreement with the govern-
ment on September 30, 2009, but sought to withdraw from
that plea agreement on October 6, 2009, a little more than a
week before trial. Hackley and his assigned attorney moved
on October 6th for the court to appoint another lawyer to rep-
resent him. The district court denied this motion.
On October 8, 2009, Hackley filed a Motion for a Separate
Trial on Count Eleven (felon in possession of a firearm). The
district court denied this motion on October 15, 2009.
The government filed a Notice of Enhanced Punishment
pursuant to 21 U.S.C. § 851 on October 9, 2009.
UNITED STATES v. HACKLEY 7
On October 19th and 20th, Hackley was tried before a jury
in Charlottesville, Virginia. At trial, after the government
rested, Hackley moved for a judgment of acquittal on Counts
Nine (solicitation to commit murder for hire) and Eleven. The
court denied the motion. Hackley requested a jury instruction
on entrapment with respect to Count Eight—murder for
hire—which the district court denied. On October 21, the jury
found him guilty on all eleven counts. Thereafter, Hackley
made a renewed motion for judgment of acquittal on Count
Nine, and this time on Count One as well. The district court
denied the motion on December 3, 2009.
On January 7, 2010, the district court sentenced Hackley to
a term of 306 months in prison. The court calculated Hack-
ley’s criminal history as eight points, based on ten convic-
tions, the oldest of which was a conviction in October 1992
for distribution and conspiracy to distribute cocaine. Offenses
older than 15 years do not usually result in enhancements
under U.S.S.G. Chapter 4, Part A § 4A1.2(e). The court, how-
ever, at the suggestion of the probation office in the presen-
tence report ("PSR"), included Hackley’s 1992 conviction
because his incarceration continued until September 23, 1993,
less than fifteen years before May 20, 2008. Including the
1992 conviction moved his criminal history from Category III
to Category IV and increased the recommended sentence
range under the Sentencing Guidelines from 262-327 months
to 292-365 months. His 306-month sentence falls within both
Sentencing Guidelines ranges.
II.
Hackley now appeals the denial of his Motions for Judg-
ment of Acquittal with respect to Counts One (conspiracy to
distribute) and Nine (solicitation to commit murder for hire),
the denial of an instruction on entrapment for Count Eight
(murder for hire), whether there was sufficient evidence to
convict him on Count Eleven (felon in possession of a fire-
arm), the district court’s refusal to grant him a separate trial
8 UNITED STATES v. HACKLEY
on Count Eleven, its refusal to allow him to substitute counsel
before trial, and finally his sentence. We consider each in
turn.
A.
Hackley appeals the district court’s denial of his Motion for
Judgment of Acquittal with respect to Count One, conspiracy
to distribute and possess a controlled substance with intent to
distribute, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B), and 846. He argues that there is insufficient evi-
dence to support his conviction.
We review the district court’s ruling on a motion for judg-
ment of acquittal de novo and will uphold the verdict if, view-
ing the evidence in the light most favorable to the
government, it is supported by substantial evidence. United
States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). Substan-
tial evidence is "evidence that a reasonable finder of fact
could accept as adequate and sufficient to support a conclu-
sion of a defendant’s guilt beyond a reasonable doubt." Id.
While acknowledging that the evidence is indeed thin, we
nonetheless affirm because we must assume on appeal that the
jury resolved any issues of witness credibility in the govern-
ment’s favor. See United States v. Jeffers, 570 F.3d 557, 565
(4th Cir. 2009). Nonetheless, we reiterate that this case repre-
sents the very boundary of what passes for substantial evi-
dence of a conspiracy.
In order to prove conspiracy in this case, "the government
was required to establish beyond a reasonable doubt that: ‘(1)
an agreement’ to distribute and ‘possess cocaine with intent
to distribute existed between two or more persons; (2) the
defendant knew of the conspiracy; and (3) the defendant
knowingly and voluntarily became a part of this conspiracy.’"
United States v. Yearwood, 518 F.3d 220, 225-26 (4th Cir.
2008) (quoting United States v. Burgos, 94 F.3d 849, 587 (4th
Cir. 1996) (en banc)). Since Hackley does not appeal his con-
UNITED STATES v. HACKLEY 9
victions for the substantive crime of distribution of a con-
trolled substance, the issue is whether there was sufficient
evidence of an agreement to support the finding of conspir-
acy.
The presence of a knowing and voluntary agreement distin-
guishes conspiracy from the completed crime and is therefore
an essential element of the crime of conspiracy. Iannelli v.
United States, 420 U.S. 770, 777 n.10 (1975); Burgos, 94
F.3d at 858. Conspirators need not know "all of the details of
the conspiracy," provided that they know its "essential
object." United States v. Goldman, 750 F.2d 1221, 1227 (4th
Cir. 1984). This agreement need only be a "tacit or mutual
understanding" between the defendant and his accomplice.
United States v. Ellis, 121 F.3d 908, 922 (4th Cir. 1997). Cir-
cumstantial evidence alone is sufficient to support a convic-
tion for conspiracy. Ellis, 121 F.3d at 922 (internal quotation
marks omitted).
In United States v. Townsend, we held that, in drug conspir-
acy cases, "evidence of a buyer-seller relationship, standing
alone, is insufficient to support a conspiracy conviction." 924
F.2d 1385, 1394 (4th Cir. 1991). Two years later, in United
States v. Mills, we clarified that holding, saying, "evidence of
a buy-sell transaction is at least relevant (i.e. probative) on the
issue of whether a conspiratorial relationship exists." 995 F.2d
480, 485 n.1 (4th Cir. 1993). Since then, we have held that
evidence of a continuing buy-sell relationship when coupled
with evidence of large quantities of drugs, or "continuing rela-
tionships and repeated transactions," creates a reasonable
inference of an agreement. United States v. Reid, 523 F.3d
310, 317 (4th Cir. 2008) (citing Burgos, 94 F.3d at 858).
The government attempts to use this inference to prove that
Hackley conspired both with Jackson and with unnamed
Maryland suppliers. This, however, is not entirely accurate.
As the district court correctly instructed the jury, because
Jackson was at all relevant times a government agent, despite
10 UNITED STATES v. HACKLEY
his unauthorized purchases, he cannot be a co-conspirator.
United States v. Lewis, 53 F.3d 29, 33 (4th Cir. 1995). The
unnamed Maryland suppliers, then, are the only possible peo-
ple with whom Hackley could have had a conspiratorial
agreement.
Preliminarily, we note that in this case, the evidence of sub-
stantial quantities of drugs is, on its own, too thin to support
an inference of conspiracy. All of the evidence of the scale of
Hackley’s drug-dealing comes from the two confidential
informants. Jackson testified that he saw Hackley with two
golf-ball sized quantities of crack. Johnson testified that he
"believed" Hackley sold "about an ounce or two a week." J.A.
269.
The government offered no testimony about how much
crack two golf-ball sized quantities would be, arguing instead
that the government need not prove the exact weights of
drugs. See United States v. Natanel, 938 F.2d 302, 312-13 (1st
Cir. 1991). While we do not disagree, if we are to infer the
existence of an agreement based on the drug quantity, it
would be helpful to have some sense of what that quantity is,
particularly when it appears limited.1 Even the government
describes Jackson’s authorized purchases as "relatively small
amounts."2 Appellee’s Br. 23. The cases on which the Gov-
ernment relies in support of this inference all involve larger
quantities than those reflected here. E.g., Yearwood, 518 F.3d
at 226 (5 ounces sold for $3,500 in a single transaction);
United States v. Parker, 330 F. App’x 436, 438 (4th Cir.
2009) (100 kilograms sold over a 10-year period to multiple
1
Because five grams was an element of the crime charged, even the dis-
trict judge was concerned that "the jury has to be given some understand-
ing as to how they’re to decide what quantity of crack is involved." J.A.
543. The government responded that two golf-ball sized quantities are a
"substantial weight," but it could not be more specific than that. Id.
2
One ounce is equivalent to 28.35 grams; Jackson made controlled pur-
chases totaling 6.5 grams of crack as well as unauthorized purchases of
unknown amounts.
UNITED STATES v. HACKLEY 11
witnesses along the distribution chain). Of the cases on which
the government relies, the smallest quantity contemplated is
4.5 ounces, but there witnesses testified that they were "repeat
customers." Reid, 523 F.3d at 317.
Nonetheless, we are constrained to affirm because the gov-
ernment’s evidence of "continuing relationships and repeated
transactions," although sparse, is sufficient to support an
inference of an ongoing relationship between Hackley and the
unnamed Maryland suppliers. Three pieces of evidence, taken
together, form the basis from which a jury could reasonably
infer that Hackley had a continuous relationship with Mary-
land suppliers. The first is Jackson’s testimony that Hackley
told Jackson that he was getting his supply of crack from his
"family" in Maryland. Supporting this testimony is Jackson’s
further observation that Hackley was able to sell crack when
he returned from Maryland.
The second is Jackson’s testimony that Hackley was "still"
getting cocaine, that he had known Hackley since 1992, and
that they had discussed crack cocaine previously. Although
Jackson had not actually bought cocaine from Hackley before
May 18, 2008, a reasonable jury could infer from this testi-
mony that Hackley had received cocaine from his "family" in
Maryland previously.
The third is a cryptic conversation between Hackley and
Dearing in which they discussed his other girlfriend’s desire
that he "tell on" someone else so that he could get out. Appel-
lee’s Br. at 21;3 Government Exhibit 58A. Hackley responded
3
Although the government relies on this conversation between Dearing
and Hackley, it neglected to include Exhibit 58A, which contains a tran-
script of the conversation, in the joint appendix or in any other filing ini-
tially made available to this court. Further complicating our efforts is that
the government’s brief refers to Exhibit 58A as Exhibit 59. The govern-
ment’s brief then cites to a portion of the trial transcript reflecting Dear-
ing’s testimony about what she understood during the conversation.
Notably absent is a transcript of the conversation that the government
quotes in its brief. We feel compelled to observe that incomplete records
accompanied by mis-bound and mis-paginated briefs replete with inaccu-
rate citations do not help our analysis.
12 UNITED STATES v. HACKLEY
that "[p]eople deal with me ‘cause I’m not about all that bull-
shit." Id. Hackley further explained to Dearing that not "tell-
[ing] on" people was "the whole principle of the game." Id.
Although she testified that she did not know what Hackley
meant when he said "[p]eople deal with me," Dearing also
testified that "the game" was "the drug game." J.A. 410-11.
From the totality of this evidence, we conclude that a jury
could find beyond a reasonable doubt that Hackley had a con-
tinuous buy-sell relationship with Maryland suppliers. Under
the test articulated in Reid and Burgos a jury could reasonably
infer that Hackley had a standing agreement—a conspira-
cy—with unnamed Maryland suppliers to bring their drugs to
market in Virginia.
It bears emphasis, however, that although there is ample
evidence that Hackley distributed crack, the conspiracy evi-
dence is far weaker.4 The relatively small amount of drugs
involved and the scant evidence of a buyer-seller relationship
between Hackley and his suppliers in Maryland are the outer
limits of that which could support an inference that a conspir-
acy existed. Distribution and conspiracy remain separate
offenses, and although we certainly allow the government to
use circumstantial evidence to prove the presence of an agree-
ment—the sole element distinguishing conspiracy from the
substantive crime—the government must take care not to ask
the jury to infer an agreement based on guilt of distribution
alone.5
4
Many of the government’s arguments rely on inferences more tenuous
than we are willing to make. For example, the government argued during
its closing argument that because Hackley told a confidential informant
that he was paying out all of his legitimate income in child support, his
other assets, like the motorcycle, must come from drug dealing. ECF No.
90 at 74:5-13. We need a more detailed accounting of Hackley’s income
and assets than the government offered at trial before we will allow pay-
ment of child support to become evidence of a conspiracy to distribute
drugs.
5
In its closing argument, the government said, "[y]ou also heard evi-
dence when the defendant was returning to Maryland, he had two golf-ball
UNITED STATES v. HACKLEY 13
B.
Next, we address whether the district court erred when it
denied Hackley a jury instruction on entrapment. The affirma-
tive defense of entrapment has two parts: "government
inducement of the crime, and a lack of predisposition on the
part of the defendant to engage in the criminal conduct."
Mathews v. United States, 485 U.S. 58, 63 (1988); see also
United States v. Ramos, 462 F.3d 329, 334 (4th Cir. 2006).
"As a general proposition, a defendant is entitled to an
instruction as to any recognized defense for which there exists
evidence sufficient for a reasonable jury to find in his favor."
Mathews, 485 U.S. at 63. We review de novo a district court’s
denial of a jury instruction on entrapment. Id.
The district court is the gatekeeper; if the defendant does
not produce "more than a mere scintilla of evidence," the
court need not give the instruction. United States v. Phan, 121
F.3d 149, 154 (4th Cir. 1997). This circuit has repeatedly held
that "solicitation of the crime alone is not sufficient to grant
the instruction, as that ‘is not the kind of conduct that would
persuade an otherwise innocent person to commit a crime.’"
Ramos, 462 F.3d at 334 (citing United States v. Hsu, 364 F.3d
192, 200 (4th Cir. 2004)).
Hackley argues that he has asserted "more than a mere
scintilla of evidence of entrapment." He asserts that a reason-
able jury could conclude that Johnson, not Hackley, initiated
sized portions of crack cocaine. Is it even possible that the defendant
didn’t agree with someone when he obtained these drugs to sell them to
someone else?" ECF No. 90 at 12:17-21. This reasoning effectively reads
the element of agreement out of the crime of conspiracy. Without this ele-
ment, anyone guilty of distributing a controlled substance would be guilty
of conspiracy to distribute unless the defendants could prove, as an affir-
mative defense, that they found, stole, or made the drugs themselves. A
paradigm in which two different crimes have identical elements would
allow the government to punish the defendant for the same offense twice.
14 UNITED STATES v. HACKLEY
the discussion of murder, and that his earlier plan was to pay
Jackson not to testify. Who started the conversation is irrele-
vant. His argument founders on the fact—which he does not
dispute—that Johnson was not a government informant at the
time that the discussions about doing away with Jackson
began. Entrapment only arises in the context of government
inducement.
Moreover, there is ample evidence in the record from
which the jury could find that Hackley was predisposed to
prevent Jackson from testifying. In addition to his discussions
with Johnson, Hackley wrote numerous letters to his girl-
friends about his desire to prevent Jackson from testifying.
"Predisposition is not limited only to crimes specifically con-
templated by the defendant prior to government suggestion."
Ramos, 462 U.S. at 334-45 (internal citations omitted).
Instead, "[i]t is sufficient if the defendant is of a frame of
mind such that, once his attention is called to the criminal
opportunity, his decision to commit the crime is the product
of his own preference and not the product of government per-
suasion." United States v. Osborne, 935 F.2d 32, 38 (4th Cir.
1986). Such was clearly the case here.
C.
Hackley appeals the district court’s denial of his Motion for
Judgment of Acquittal as to Count 9, solicitation to commit
murder for hire, in violation of 18 U.S.C. §§ 373 and 1958.6
6
With respect to Count 9, Hackley also argues that the government’s
evidence amounts to a constructive amendment of the indictment. "A con-
structive amendment to an indictment occurs when either the government
(usually during its presentation of evidence and/or its argument), the court
(usually through its instructions to the jury), or both, broadens the possible
bases for conviction beyond those presented by the grand jury." United
States v. Floresca, 38 F.3d 706, 710 (4th Cir. 1994) (en banc). Hackley
argues the indictment was constructively amended because the jury could
have relied on 18 U.S.C. § 1512(a)(1)—which makes it unlawful to "kill[ ]
or attempt[ ] to kill another person, with intent to," for example, "prevent
UNITED STATES v. HACKLEY 15
Section 1958 criminalizes using the mail or other interstate
commerce facilities "with intent that a murder be committed
in violation of the laws of any State or the United States" for
pecuniary gain.7 Section 373 makes it a crime to solicit any-
one, including a government agent, to commit a crime of vio-
lence. Hackley claims that there was insufficient evidence to
show that he used the mail or other interstate commerce facili-
ties while soliciting Codispot to kill Jackson. We disagree.
The record clearly shows that Hackley wrote to his many
girlfriends seeking help in his murder for hire scheme. For
example, he wrote to Dearing instructing her to show Codis-
pot the motorcycle. While it is true that Hackley did not write
or call Codispot himself, § 1958 simply says "use the mail . . .
with intent that a murder be committed." We have never held
that § 1958 requires that defendants mail the person whom
they solicit, nor does the statute support such a limited read-
ing. Since Hackley’s letters to Dearing facilitated his solicita-
tion of Codispot, we affirm.
the attendance or testimony of any person in an official proceeding"—as
a predicate offense under 18 U.S.C. § 373, even though the only permissi-
ble predicate offense charged in the indictment was 18 U.S.C. § 1958, the
murder-for-hire statute. It is true that in a separate count of the indictment,
Count 10, Hackley was charged with a substantive violation of 18 U.S.C.
§ 1512(a)(1), and the jury was instructed and convicted Hackley on that
count. But the district court specifically instructed the jury that, on Count
9, the only applicable predicate offense for a violation of 18 U.S.C. § 373
was § 1958, not § 1512(a)(1). Therefore, there was no constructive amend-
ment of the indictment.
7
Hackley also argues that 18 U.S.C. § 1512(c)(2) is not a proper predi-
cate offense under 18 U.S.C. § 373. The jury, however, was not instructed
that 18 U.S.C. § 1512(c)(2) is a predicate offense. Rather, the district court
agreed with Hackley that only the murder-for-hire statute, not the
obstruction-of-justice statute, constituted a proper predicate offense, and
instructed the jury that Hackley could be convicted of violating 18 U.S.C.
§ 373 only if it found that Hackley had solicited Codispot to commit mur-
der for hire in violation of 18 U.S.C. § 1958.
16 UNITED STATES v. HACKLEY
D.
Hackley makes two claims with respect to Count Eleven:
first, that there was insufficient evidence to convict him of
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g); and second, that the district court erred by
denying his motion for a separate trial on this count. We dis-
cuss each in turn.
1.
As discussed above, "when reviewing a sufficiency-of-the-
evidence claim, we will sustain the jury’s verdict ‘if there is
substantial evidence, taking the view most favorable to the
Government, to support it.’" United States v. Jackson, 124
F.3d 607, 610 (4th Cir. 1997) (quoting Glasser v. United
States, 315 U.S. 60, 80 (1942)). "Substantial evidence is evi-
dence that a reasonable finder of fact could accept as adequate
and sufficient to support a conclusion of a defendant’s guilt
beyond a reasonable doubt." Id. (citing Burgos, 94 F.3d at
862). Since Hackley stipulated that he was a felon, the only
issue is whether he possessed a firearm.
A convicted felon is guilty under § 922(g) if he "exercised
dominion and control over" a firearm. Jackson, 124 F.3d at
610 (internal quotation marks omitted). Hackley claims that
he could not have exercised dominion or control over the fire-
arm because he was incarcerated. We need not reach this
issue because the indictment charged him with possessing the
firearm "on or between August 19, 2008 and August 28,
2008." J.A. 22. Hackley was not arrested until August 20,
2008.
Before his arrest, Hackley purchased the gun and stored it
at Irvette Reaves’s house. She testified that she did not know
it was there until he found out that she was moving and asked
her to bring it to her new house. Hackley also wrote to her
from prison to inquire about what she had done with his "toy."
UNITED STATES v. HACKLEY 17
Since a jury could infer from this evidence that Hackley pos-
sessed the gun on August 19th, before he was arrested, we
affirm.
2.
Hackley also claims that joinder of Count Eleven with the
other counts in the indictment was improper and that trial on
all counts together prejudiced him. Neither claim has merit.
"Whether offenses in an indictment are improperly joined
under Rule 8(a) is a question of law reviewed de novo."
United States v. Cardwell, 433 F.3d 378, 384 (4th Cir. 2007).
We review the district court’s decision not to sever the
offenses for abuse of discretion. United States v. Acker, 52
F.3d 509, 514 (4th Cir. 1995)
a.
An indictment "may charge a defendant in separate counts
with [two] or more offenses if [1] the offenses charged . . . are
of the same or similar character, . . . [2] are based on the same
act or transaction, or [3] are connected with or constitute parts
of a common scheme or plan." Fed. R. Crim. P. 8(a). Under
this court’s decision in Cardwell, counts are properly joined
if they "are based on the same act or transaction" or "are con-
nected with or constitute parts of a common scheme or plan"
such that they "have a logical relationship to one another." Id.
at 385 (internal quotation marks omitted). This test permits
broad joinder to promote efficiency, but does not permit
stretching the statute to cover offenses that are only related
temporally. Id. at 386.
In Cardwell, we held that a felon in possession charge was
not necessarily related to a charge of murder for hire when the
gun was not intended to be part of the crime, unless there
exist "additional facts demonstrat[ing] that the crimes were
logically related to one another." Id. at 387. We held that the
defendant’s statement that he would have used the gun to
18 UNITED STATES v. HACKLEY
avoid arrest for murder for hire was sufficient to make joinder
of the charges proper. Id. Here Hackley not only possessed
the gun that was to be used in the crime; he offered that exact
gun for the undercover agent to use to murder Jackson. If con-
templating using a gun to avoid arrest for murder for hire
shows a sufficient relationship for joinder then surely contem-
plating using a gun in the murder for hire is also sufficient.
That Hackley did not make an "effort to actually use" the gun,
and that he was incarcerated during the relevant time period,
does not render the relationship any less logical. For these
reasons, we hold that Count Eleven was permissibly joined
with the other charges.
b.
In the alternative, Hackley argues the district court erred
when it declined to sever Count Eleven for a separate trial
because its inclusion prejudices him. Federal Rule of Criminal
Procedure 14(a) gives courts discretion to sever offenses if
joinder in a single trial would prejudice a defendant. It is not
enough for the defendant to show that severance offers him "a
better chance of acquittal." United States v. Reavis, 48 F.3d
763, 767 (4th Cir. 1995). The Supreme Court has held that
severance is appropriate "only if there is a serious risk that a
joint trial would . . . prevent the jury from making a reliable
judgment about guilt or innocence." Zafiro v. United States,
506 U.S. 534, 539 (1993) (joinder of defendants). Similarly,
we have held that "[t]he trial court has a wide range of discre-
tion in matters of severance which should be left undisturbed,
absent a showing of clear prejudice or abuse of discretion."
Acker, 52 F.3d at 514. Hackley has shown neither clear preju-
dice nor abuse of discretion.
Hackley claims that knowing about his prior felony convic-
tion would prejudice jurors when considering the other
counts. In Cardwell, which as we noted also involved
§ 922(g) and a murder-for-hire charge, we opined that
"stipulat[ing] to the existence of the prior felony[, and
UNITED STATES v. HACKLEY 19
k]eeping the facts about the felony (if not the fact of the fel-
ony) from the jury tends to diffuse any passions that would be
aroused by specific evidence of the defendant’s felonious
past." 433 F.3d at 388. The district court in this case allowed
precisely such a stipulation, which prevented the jury from
hearing any details about the prior conviction. Moreover, evi-
dence of Hackley’s possession of a gun would have been
admissible on the murder-for-hire and drug distribution
charges, because in Hackley’s conversations with Johnson
and Codispot he stated that he had a gun that Codispot could
use to murder Jackson. Accordingly, the district court did not
abuse its discretion when it declined to sever Count Eleven.
E.
Hackley claims that the district court abused its discretion
when it denied his Motion for Change of Counsel. While the
Sixth Amendment includes the right to counsel of one’s own
choosing, this right is not absolute and "must not obstruct
orderly judicial procedure and deprive courts of the exercise
of their inherent power to control the administration of jus-
tice." United States v. Gallop, 838 F.2d 105, 108 (4th Cir.
1988). We review denials of motions to substitute counsel for
abuse of discretion, considering (1) "the timeliness of the
motion"; (2) "the adequacy of the court’s inquiry into the
defendant’s complaint"; and (3) "whether the attorney/client
conflict was so great that it had resulted in total lack of com-
munication preventing an adequate defense." United States v.
Mullen, 32 F.3d 891, 895 (4th Cir. 1994).
Considering the timeliness of Hackley’s motion under Mul-
len’s first prong, we note that Hackley moved for new counsel
when he withdrew from his plea agreement just one week
before trial. The trial had already been delayed once.
Although the district court did not specifically find the motion
untimely, it expressed concern about future delay, especially
since Hackley’s was "one of the oldest criminal cases" and
20 UNITED STATES v. HACKLEY
that "the better course would be to go ahead and try it." J.A.
40-41.
Looking to the second Mullen factor, Hackley alleges that
the district court failed to investigate the breakdown in com-
munication between him and his attorney. That assertion is
not borne out by the record. The district court inquired about
Hackley’s complaints and asked his attorney whether she had
any problems with the representation. The attorney responded
that she was not moving to withdraw. Hackley’s complaint
was that they had disagreements and that "she was not repre-
senting [him] to her full ability." J.A. 38. However, he gave
no basis for his expectations, nor did he specify what counsel
should have been doing that she was not. Again, we cannot
agree the district court failed to investigate his complaint.
Nor did there appear to be such a breakdown in communi-
cation as to prevent Hackley from receiving an adequate
defense. He complained that his counsel’s advice was "wishy-
washy," but Hackley changed his own mind about how to
plead. J.A. 39. He may not have liked her style, but he has not
suggested that counsel’s representation was inadequate.
Therefore, we affirm.
F.
The final issue Hackley raises is whether the district court
abused its discretion by improperly considering his prior fel-
ony conviction when calculating his sentence. In reviewing
any sentence, "whether inside, just outside, or significantly
outside the Guidelines range," we apply a "deferential abuse-
of-discretion standard." Gall v. United States, 552 U.S. 38, 51
(2007). We must first consider whether the district court com-
mitted any procedural error and then "[i]f, and only if, we find
the sentence procedurally reasonable can we consider the sub-
stantive reasonableness of the sentence imposed under an
abuse-of-discretion standard." United States v. Carter, 564
F.3d 325, 328 (4th Cir. 2009) (citations omitted).
UNITED STATES v. HACKLEY 21
Procedural errors include treating the Guidelines as manda-
tory, failing to calculate (or improperly calculating) the
Guidelines range, selecting a range based on clearly erroneous
facts or failing to explain the sentence chosen. See Gall, 552
U.S. at 51; see also Rita v. United States, 551 U.S. 338
(2007). "Substantive reasonableness examines the totality of
the circumstances to see whether the sentencing court abused
its discretion in concluding that the sentence it chose satisfied
the standards set forth in 18 U.S.C. § 3553(a)." United States
v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). A
sentence within a properly calculated guideline range is pre-
sumptively reasonable. Rita, 551 U.S. at 351.
The district court adopted the Presentence Report’s calcula-
tion of Hackley’s criminal history as eight points based on his
ten prior convictions, the oldest of which was a conviction in
October 1992 for distribution and conspiracy to distribute
cocaine. Including the October 1992 conviction added three
points to the total and bumped Hackley’s criminal history cat-
egory from III (and a recommended range of 262 to 327
months) to IV (and a recommended range of 292 to 365
months). Hackley does not argue that including the conviction
was a procedural error. Indeed, although ordinarily a prior
conviction only counts toward a defendant’s criminal history
if the sentence on the conviction was "imposed within fifteen
years of the defendant’s commencement of the instant
offense," convictions imposed earlier are also counted if the
sentence exceeded one year and one month and "resulted in
the defendant being incarcerated during any part of such
fifteen-year period." U.S.S.G. § 4A1.2(e). Hackley was not
released from prison on the October 1992 conviction until
September 23, 1993, less than fifteen years before May 20,
2008. Because the Guidelines range was properly calculated
and because the sentence imposed (306 months) is within that
range, we are "allowed to presume that [the] district court’s
chosen sentence is substantively reasonable." Mendoza-
Mendoza, 597 F.3d at 216.
22 UNITED STATES v. HACKLEY
Hackley argues the 306-month sentence was "greater than
necessary," 18 U.S.C. § 3553(a), and therefore the district
court’s refusal to depart downward rendered the sentence sub-
stantively unreasonable because (1) criminal history points
are not "ordinarily" assigned for "convictions older than 15
years", (2) "the 1992 conviction is the only [prior] conviction
with a . . . substantial jail sentence," and (3) Hackley only
served a year and a half in jail for the 1992 conviction. Appel-
lant’s Br. at 45.
A district court has discretion to depart downward "[i]f reli-
able information indicates that the defendant’s criminal his-
tory category substantially over-represents the seriousness of
the defendant’s criminal history or the likelihood that the
defendant will commit other crimes." U.S.S.G. § 4A1.3(b)(1).
However, "[w]e lack the authority to review a sentencing
court’s denial of a downward departure unless the court failed
to understand its authority to do so." United States v. Brewer,
520 F.3d 367, 371 (4th Cir. 2008). Hackley does not argue,
and the record does not disclose, that the district court failed
to recognize its authority to depart. For these reasons, we
decline to disturb his sentence.
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED